coming in after the lapse of many years and setting up the title of that entryman, does not come in the attitude of an equitable appellant.

A proper interpretation of the acts of Congress making railroad grants like the one in this case requires that the relative rights of the company and an individual entryman must be determined not by the act of the company, in itself, fixing definitely the line of its road, or by the mere occupancy of the individual, but by record evidence, on the one part the filing of the map in the office of the Secretary of the Interior, and on the other the declaration or entry in the local land office, and while, as repeatedly held, the railroad company may not question the validity or propriety of the entryman's claim of record, its rights ought not to be defeated, long years after its title had apparently fixed, by fugitive and uncertain testimony of occupation.

This case comes on error to the Supreme Court of the State of Utah, and involves the title to the S.W. 1/4 of section 29, township 11 north, of range 2 west. This tract is within the place limits of the grant to the Central Pacific Railroad of California. The map of definite location of that part of the road opposite this land was filed and approved by the Secretary of the Interior on October 20, 1868, and the entire road was constructed and accepted prior to 1870. The land is not mineral nor swamp land, nor was it returned or denominated as such; was agricultural in character, and at the date of the filing of the map of definite location there was nowhere any record evidence of a private claim. At that time, no local land office had been established in the district in which this land is situated. Such office was opened sometime in April or May, 1869.

On May 29, 1869, this declaratory statement was filed:

"Declaratory statement for cases where the lands"

"are not subject to private entry"

"I, Moroni Olney, of Box Elder County, Utah Territory, being a citizen of the United States and the head of a family, have on the 23d day of April, 1869, settled and improved the S.W. 1/4 of section 29, township 11 north, of range 2 west, in the district of lands subject to sale at the land office in Salt Lake City, Utah, and containing 160 acres, which land has not yet been offered at public sale, and thus rendered subject to private entry, and I do hereby declare my intention to claim said

tract of land as a preemption right under the provisions of said act of 4th September, 1841."

"Given under my hand this 29th day of May, 1869."

"(Signed) Moroni Olney"

"In the presence of --"

"Abraham Hunsaker"

Nothing further was done by Olney. He abandoned the land, and nothing appears to have been heard of him since the date of the entry. On June 20, 1896, Andrew Madsen, the defendant in error, who alleged that he had been a settler and in occupation of the tract since 1888, filed a homestead entry thereof in the local office. A contest had previously and in 1893 been instituted between the railroad company and Madsen, which was heard and decided by the register and receiver, whose decision was affirmed by the Commissioner of the General Land Office, the finding of the register and receiver, as appears from the record in this case, being --

"We find that the tract in question, which is the S.W. 1/4 of section 29, township 11 north, of range 2 west, of the Salt Lake meridian, was settled upon and occupied and claimed by a qualified entryman, to-wit, Moroni Olney, prior to October 20, 1868, which therefore excepted the land from the operation of the grant of Congress to the Central Pacific Railroad Company."

A certified copy of that decision in full was filed by counsel for defendant in error on the hearing in this Court, and that certified copy reads as follows:

"This case arises upon an application to enter a tract of land covered by a railway selection which it is sought to cancel, for the reason that a valid settlement had been made on the land prior to the date of the attachment of the grant to the railway company."

"Our decision is that the motion of the Central Pacific Railway Company to strike out, dismiss, and expunge the depositions from the records should be denied. We therefore find the issues in favor of Andrew Madsen, and that the tract of land in dispute was reserved and excepted from the grant to the railroad company because, first, a preemption claim had attached

to the land in dispute at the time the line of said road was definitely fixed."

"2d. There was a qualified preemption claimant upon the land at that time, which brought it within the first portion of the excepting clause of the act of 1864, which provides that any lands granted by that act, or the act to which it is an amendment, shall not defeat or impair any preemption claim."

"3d. On the 20th day of October, 1868, the land in dispute contained the improvements of a bona fide settler, which also excepted the land from the provisions of the grant."

"We further find that Central Pacific Railway selection No. 3 should be cancelled as to the tract in dispute, and that Andrew Madsen should be permitted, if he so desires, to make preemption entry covering this land."

"We decide that he should be permitted to enter the land under the preemption law, because his right to do so, i.e., his settlement upon the land, was initiated long prior to the Act of March 3, 1891, repealing the preemption law, which repealing act expressly excepted all bona fide claims lawfully initiated before the passage of the act."

After the decision of the Commissioner affirming that of the register and receiver, the entry was made and a patent was issued to Madsen.

Prior thereto and on January 12, 1894, this action was brought in the Fourth Judicial District of the Territory of Utah, County of Box Elder, by the plaintiff in error, grantee from the railroad company, to establish his title to the tract and to recover possession. In the trial court, after the issue of the patent and the admission of Utah as a state, a decree was entered in favor of the defendant. The case was taken by appeal to the supreme court of the state, and by that court the decree of the district court was affirmed, 17 Utah, 352, to review which decree this writ of error was brought.

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